‘between the dragon and his wrath’, 1994–2017power brokers and extend the highly centralized state structure by creat-
ing ever more layers of bureaucracy. Rabbani was somehow persuaded to
quit the Presidential Palace and Hamid Karzai moved in. Since there was
no Legislature, for the next two years Karzai ruled by decree, but most of
the Presidential firmans were ignored, or honoured in the breach, by both
ordinary Afghans and cabinet ministers, many of whom were a law unto
themselves. Cabinet meetings were frequently stormy affairs with Karzai
and rivals from different factions openly threatening each other.
President Bush had damned the Taliban for their violation of human
rights and their treatment of women, but Karzai’s government was
dom inated by Islamists too, many of whom were wedded to the vision
of a nation ruled by the shari‘a. In order to bring ‘Abd al-Sayyaf over to
the government side, for example, Karzai ignored his friendship with bin
Laden, his Wahhabist ideology and his role in encouraging Arab jihad-
ists to come to Afghanistan in the first place. He even appointed one
of Sayyaf ’s ideological allies, Fazl Hadi Shinwari, as chief justice of the
Supreme Court. During his era as minister from 2002 to 2006, the octoge-
narian Shinwari appointed ideological allies to key positions in the justice
system, even though he and many of the other appointees did not fulfil
the educational criteria laid down by the 2004 Constitution. 19 Shinwari
perpetuated the ‘Amr b’il Ma‘ruf, endorsed Taliban-style punishments and
opposed coeducation. He tacitly condoned child marriage and tried to ban
women from singing on television and to outlaw cable tv. Shinwari also
confirmed death sentences on journalists for alleged blasphemy and on an
Afghan convert to Christianity. In many other ways he undermined the
Constitution’s claim to uphold international law and the United Nations’
Charter on Human Rights.
The new Constitution, which became law in 2004, drew heavily on
the 1964 and 1977 Constitutions and many of its clauses were almost word
for word copies of these former Qanun-i Asasis. Where it differed was the
formal designation of Afghanistan as an Islamic state, despite objections
from the usa and Western nations. Like the previous Constitutions, that
of 2004 once again failed to resolve the dichotomy between the role of
the Hanafi legal code and international law. The preamble yet again paid
lip service to the un Charter and the Universal Declaration of Human
Rights, but the Articles themselves included statements such as, ‘no law
can be passed contrary to the beliefs and provisions of the sacred religion
of Islam’. Article 7.15 allowed the judiciary to enforce the Hanafi legal code
and/or the Shi‘a version of Islamic law, which allowed judges to ignore the
Constitution’s ‘liberal’ provisions simply by declaring them un-Islamic. 20